NIRMAL KUMAR JAIN Vs. SATYA PRAKASH JAIN

JUDGEMENT

(1.) Nirmal Kumar Jain filed suit No. 37 of 1952 in the Court of Civil Judge, Sitapur claiming recovery of a sum of Rs. 6,750/-, i.e., a sum of Rs. 5,790/15/- on account of principal and the balance on account of interest at 3 per cent per annum from 26-8-1946 up to the date of the suit. The facts alleged were that Amar Singh and Sumer Singh had in 1922 executed a mortgage for Rs. 1,17,400/- in favour of Madho Ram and others. Out of this mortgage money Rs. 69,200/belonged to Madho Ram, and Rs. 26,778/- were advanced by Raghubar Dayal now succeeded by defendants 1 to 3, Satya Prakash, Smt. Indra Kumari and Smt. Rajul Mani. The balance of. Rs. 21,422/- was advanced by Salik Chand defendant No. 5 and Misri Lal defendant No. 6. Madho Ram is now succeeded by his son, Nirmal Kumar Jain, the plaintiff. After Madho Ram's death, a suit for redemption of the mortgage was filed and was decreed on 18th March, 1929. Certain amounts were realised. These are not in dispute. After 1939 a sum of Rs. 38,789/-was deposited by the mortgagors towards the decree. For certain reasons which do not concern us, the amount was deposited with the Imperial Bank of India, Sitapur in a fixed deposit account renewed from time to time. In September, 1944 the parties wanted to withdraw the amount but there was no agreement. Thereupon, the plaintiff Nirmal Kumar filed a suit for declaration that he was entitled to a sum of Rs. 24,630/- out of Rs. 41,786/- held by the bank. This suit was decreed only for Rs. 19,208/12/-. The plaintiff took an appeal to the Chief Court of Avadh and his whole claim was decreed on appeal, In the meantime on 25th or 26th August, 1946 the plaintiff and the four defendants of that suit withdrew the amount from the bank and the plaintiff was paid only a sum of Rs. 19,208/12/-. The present suit was filed on 25th August, 1952. The plaintiff sought to recover from the defendants the additional sum to which he was held entitled by the appellate decree. Various pleas were raised in the trial court. These defences were not accepted by the learned trial Judge. He was, however, of opinion that the suit was barred by limitation. In that view the learned Civil Judge dismissed the plaintiff's suit by judgment dated 20th December, 1952 and directed the parties to bear their own costs. Against that judgment and decree, Nirmal Kumar Jain, the plaintiff has come up in appeal. I have heard the learned counsel for the parties.

(2.) The only question agitated before me is as to whether Article 62 of the First Schedule to the Indian Limitation Act (Act IX of 1908) or Article 120 of the same Schedule is applicable to the facts of the case.

(3.) There is no dispute as regards the facts. The plaintiff had initially claimed a larger amount of Rs. 24,630/4/-. He was granted a decree only for Rs. 19,208/12/-. It was in terms of this decree that the parties withdrew the various sums from the Imperial Bank of India, Sitapur Branch. It does not, therefore, appear possible to hold that the defendants have taken the amount from the bank accepting the position that they were holding the money for and on behalf of the plaintiff. The question of fact to be determined in the present case is whether in the circumstances of the case the defendants must be taken impliedly to have received the money for the use of the plaintiff and thus to have brought about circumstances to which Article 62 of the Schedule referred to will apply.